Case 1:20-cv-02787 Document 1 Filed 10/01/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
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Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF THE TREASURY,
)
1500 Pennsylvania Avenue NW
)
Washington, DC 20220
)
)
and
)
)
INTERNAL REVENUE SERVICE
)
1111 Constitution Avenue NW
)
Washington, DC 20224
)
)
Defendants. )
)
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 20-cv-2787

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Department of the

Treasury and the Internal Revenue Service under the Freedom of Information Act, 5 U.S.C.
§ 552 (FOIA), and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking
declaratory and injunctive relief to compel compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.
3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).

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4.

With respect to two FOIA requests at issue in this action, American Oversight

timely appealed Defendant Internal Revenue Service’s adverse determinations pursuant to
5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). American Oversight has therefore properly exhausted all
administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(A)(ii) and is now entitled to judicial
review of the agency’s determination on the appeal.
5.

With respect to the remaining FOIA requests at issue in this action, because

Defendants have failed to comply with the applicable time-limit provisions of FOIA, American
Oversight is deemed to have exhausted its administrative remedies pursuant to 5 U.S.C.
§ 552(a)(6)(C)(i) and is now entitled to judicial action enjoining Defendants from continuing to
withhold department or agency records and ordering the production of department or agency
records improperly withheld.
PARTIES
6.

Plaintiff American Oversight is a nonpartisan non-profit section 501(c)(3)

organization primarily engaged in disseminating information to the public. American Oversight
is committed to promoting transparency in government, educating the public about government
activities, and ensuring the accountability of government officials. Through research and FOIA
requests, American Oversight uses the information it gathers, and its analysis of it, to educate the
public about the activities and operations of the federal government through reports, published
analyses, press releases, and other media. The organization is incorporated under the laws of the
District of Columbia.
7.

Defendant U.S. Department of the Treasury (Treasury) is a department of the

executive branch of the U.S. government headquartered in Washington, D.C., and an agency of
the federal government within the meaning of 5 U.S.C. § 552(f)(1). Treasury has possession,

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custody, and control of records that American Oversight seeks.
8.

Defendant Internal Revenue Service (IRS) is a bureau of Treasury and is

headquartered in Washington, D.C. The IRS is an agency of the federal government within the
meaning of 5 U.S.C. § 552(f)(1). The IRS has possession, custody, and control of records that
Plaintiff seeks.
STATEMENT OF FACTS
IRS Resumes and Ethics Forms Request
9.

On June 7, 2019, American Oversight submitted a FOIA request to the IRS

seeking the (a) resume, (b) conflicts or ethics waivers or authorizations, (c) records reflecting any
recusal determination, and (d) copies of any SF-50 forms for four specified IRS officials and
“[a]ny other employee who entered into a position at the agency as a ‘political appointee’ since
January 21, 2017.” Ex. 1 at 9–10.1
10.

By letter dated July 3, 2019, the IRS acknowledged American Oversight’s

request, assigning it tracking number F19161-0042. Ex. 1 at 16–19.
11.

By letter dated September 25, 2019, the IRS issued a purportedly final response to

American Oversight’s request. Id. at 23–27. In response to part (a) of American Oversight’s
request, the IRS stated that it was withholding in full the resumes of the specified officials under
FOIA Exemption (b)(6). Id. at 24. In response to American Oversight’s requests for (b) conflicts
or ethics documents and (c) recusal determinations, the IRS did not clearly state whether
responsive records had been identified but referenced FOIA Exemption (b)(6) and released no

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Attached hereto as Exhibit 1 is American Oversight’s December 20, 2019 administrative appeal
submitted to the IRS regarding this request. See infra ¶ 12. American Oversight’s request appears
at pages 8–15, as Exhibit A to the appeal. Additional correspondence described infra at ¶¶ 10–11
are also attached as exhibits to American Oversight’s appeal.
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records responsive to these parts of the request. Id. at 25. In response to part (d) of American
Oversight’s request, the IRS released partially redacted copies of the SF-50 forms for three of the
specified officials: Charles P. Rettig, Michael Desmond, and William Paul. Id. at 25, 28–33.
12.

By letter dated December 20, 2019, American Oversight appealed the IRS’s

adverse determinations, objecting to the agency’s improper withholding in full of records under
Exemption (b)(6). A copy of American Oversight’s appeal is attached hereto as Exhibit 1 and
incorporated herein.
13.

By letter dated March 3, 2020, the IRS responded to American Oversight’s

appeal, upholding the agency’s initial determination. Ex. 2.
14.

With regards to the blanket withholding of resumes, the IRS Appeals Office

stated that:
1) Commissioner Charles Rettig’s biographical information is
listed on the of [sic] the Internal Revenue Service website
located at www.IRS.gov and may be found by searching under
his name.
2) Former Acting Commissioner, David Kautter is the Assistant
Treasury Secretary for Tax Policy. In his capacity as the
Assistant Treasury Secretary at the Department of Treasury, he
serviced [sic] in a dual role as the Acting Commissioner of the
IRS. His biographical information is located at
www.treasury.gov/about/officials.
Id. at 1–2. The IRS made no other statements supporting the agency’s decision to withhold the
resumes under Exemption (b)(6). See id.
15.

With regard to the blanket withholding of conflicts or ethics waivers and

authorizations and recusal determinations, the IRS Appeals Office stated that:
To the extent that any data exists which would identify these
waivers, the Service will assert exemption 6 to deny that data. In
Reporters Committee for Freedom of the Press v. Department of
Justice, 489 U.S. 749 (1989), the Supreme Court reviewed the
legislative history of the FOIA to conclude that the central purpose

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of the statute is to “contribut[e] significantly to public understanding
of the operations or activities of the government.” 489 U.S. at 775
(emphasis in original). Reporters Committee requires a balancing of
the public interest in the disclosure of information which will add to
“the public understanding of the operations or activities of the
government” with the countervailing privacy interests of the
affected individuals. Because the data you are seeking is located in
personnel records and has a strong privacy interest, it is exempt
under subsection (b)(6).
Ex. 2 at 2. The IRS made no other statements supporting the agency’s decision to withhold ethics
waivers and authorizations and recusal determinations under Exemption (b)(6).
IRS Communications Request
16.

On May 7, 2020, American Oversight submitted a FOIA request to the IRS

seeking records of communications (a) between specified IRS officials and any White House
official about the audits of Vice President Pence, Vice President Pence’s family, President
Trump, or President Trump’s family; (b) from specified IRS officials to any career IRS officials
responsible for or involved in the audits of President Trump or Vice President Pence;
(c) between specified IRS officials and any Treasury Department official containing specified
key terms; and (d) between specified IRS officials and specified Treasury Department officials
about the audits of Vice President Pence, Vice President Pence’s family, President Trump, or
President Trump’s family. See Ex. 3 at 10–14.2
17.

American Oversight requested all responsive records from January 20, 2017,

through the date of the search. Ex. 3 at 10–14.

Attached hereto as Exhibit 3 is American Oversight’s June 29, 2020 administrative appeal
submitted to the IRS regarding this request. See infra ¶ 20. American Oversight’s request appears
at pages 8–18, as Exhibit A to the appeal. Additional correspondence described infra at ¶¶ 18–19
is also attached as an exhibit to American Oversight’s appeal.
2

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18.

By letter dated May 28, 2020, the IRS issued a response to American Oversight’s

request, and assigned it tracking number F20129-0009. Id. at 19–22.
19.

In its May 28, 2020 response, the IRS denied American Oversight’s request in

full, asserting that:
The scope of your request extends to records, to the extent that any
exist, that consist of or contain the tax returns or return information
of third parties. Please be advised that such records, to the extent
that they exist, would be confidential and may not be disclosed
unless specifically authorized by law.
Id. (citing FOIA Exemption (b)(3) and 26 U.S.C. § 6103).
20.

By letter dated June 29, 2020, American Oversight appealed the IRS’s adverse

determination, objecting to the agency’s improper denial of the request purportedly pursuant to
Exemption (b)(3) and 26 U.S.C. § 6103. A copy of American Oversight’s appeal is attached
hereto as Exhibit 3 and incorporated herein.
21.

By letter dated August 14, 2020, the IRS acknowledged its receipt of American

Oversight’s appeal on August 13, 2020. Ex. 4.
22.

As of the date of this complaint, American Oversight has not received any further

communication from the IRS regarding this FOIA request.
Treasury – White House Communications Request
23.

On May 7, 2020, American Oversight submitted a FOIA request to Treasury

seeking records of communications between specified Treasury officials and anyone serving in
the Executive Office of the President about the audits of Vice President Pence, Vice President
Pence’s family, President Trump, or President Trump’s family. See Ex. 5.
24.

American Oversight requested all responsive records from January 20, 2017,

through the date of the search. Id.

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25.

By letter dated May 19, 2020, Treasury acknowledged receipt of American

Oversight’s FOIA request, assigned the request FOIA tracking number 2020-05-062, and
informed American Oversight of its intention to take a processing extension of ten days. Ex. 6.
26.

As of the date of this Complaint, American Oversight has not received any further

communication from Treasury regarding this FOIA request.
Treasury – IRS Communications Request
27.

On May 7, 2020, American Oversight submitted a FOIA request to Treasury

seeking (a) records reflecting communications between specified Treasury officials and specified
IRS officials about the audits of Vice President Pence, Vice President Pence’s family, President
Trump, or President Trump’s family; and (b) records reflecting communications sent by
specified Treasury officials containing specified key terms. See Ex 7.
28.

American Oversight requested all responsive records from January 20, 2017,

through the date of the search. Id.
29.

By letter dated May 19, 2020, Treasury acknowledged receipt of American

Oversight’s FOIA request, assigned the request FOIA tracking number 2020-05-063, and
informed American Oversight of its intention to take a processing extension of ten days. Ex. 6.
30.

As of the date of this Complaint, American Oversight has not received any further

communication from Treasury regarding this FOIA request.
Exhaustion of Administrative Remedies
31.

With respect to American Oversight’s IRS Resumes and Ethics Forms Request,

see supra ¶¶ 9–15, Defendant IRS informed American Oversight of its final determination on
September 25, 2019. American Oversight timely appealed that determination on
December 20, 2019. Defendant IRS affirmed the agency’s adverse determination by letter dated

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March 3, 2020. Therefore, American Oversight has exhausted all available administrative
remedies.
32.

With respect to American Oversight’s IRS Communications Request, see supra

¶¶ 16–22, Defendant IRS informed American Oversight of its final determination on
May 28, 2020. American Oversight timely appealed that determination on July 29, 2020, and the
IRS acknowledged that it received American Oversight’s appeal on August 13, 2020. Therefore,
American Oversight has exhausted all available administrative remedies.
33.

With respect to the Treasury – White House Communications Request, see supra

¶¶ 23–26, and the Treasury – IRS Communications Request, see supra ¶¶ 27–30, as of the date of
this complaint, Defendant Treasury has failed to (a) notify American Oversight of a final
determination regarding its FOIA requests, including the scope of any responsive records
Defendant Treasury intends to produce or withhold and the reasons for any withholdings; or
(b) produce the requested records or demonstrate that the requested records are lawfully exempt
from production. Through Defendant Treasury’s failure to respond to American Oversight’s
FOIA requests within the time period required by law, American Oversight has constructively
exhausted its administrative remedies and seeks immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
34.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
35.

American Oversight properly requested records within the possession, custody,

and control of Defendants.

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36.

Defendants are an agency, and a component thereof, subject to FOIA and must

therefore make reasonable efforts to search for requested records.
37.

Defendants have failed to promptly review agency records for the purpose of

locating those records that are responsive to American Oversight’s FOIA requests.
38.

Defendants’ failure to conduct adequate searches for responsive records violates

39.

Plaintiff is therefore entitled to injunctive and declaratory relief requiring

FOIA.

Defendants to promptly make reasonable efforts to search for records responsive to American
Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
40.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
41.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
42.

Defendants are an agency, and a component thereof, subject to FOIA and must

therefore release in response to FOIA requests any non-exempt records and provide a lawful
reason for withholding any materials.
43.

Defendants are wrongfully withholding non-exempt agency records requested by

Plaintiff by failing to produce non-exempt records responsive to American Oversight’s FOIA
requests.

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44.

Defendants are wrongfully withholding non-exempt agency records requested by

Plaintiff by failing to segregate exempt information in otherwise non-exempt records responsive
to American Oversight’s FOIA requests.
45.

Defendants’ failure to provide all non-exempt responsive records violates FOIA.

46.

Plaintiff is therefore entitled to declaratory and injunctive relief requiring

Defendants to promptly produce all non-exempt records responsive to its FOIA requests and
provide indexes justifying the withholding of any responsive records withheld under claim of
exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct a search reasonably calculated to uncover all records
responsive to American Oversight’s FOIA requests;
(2) Order Defendants to produce, within twenty days of the Court’s order, any and all
non-exempt records responsive to all of American Oversight’s FOIA requests and
Vaughn indexes of any responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to American Oversight’s FOIA requests;
(4) Award American Oversight the costs of this proceeding, including reasonable
attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant
to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.

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Dated: October 1, 2020

Respectfully submitted,
/s/ Katherine M. Anthony
Katherine Anthony
D.C. Bar No. 1630524
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 897-3918
katherine.anthony@americanoversight.org
Counsel for Plaintiff

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